Citation Nr: 1704483
Decision Date: 02/14/17 Archive Date: 02/24/17
DOCKET NO. 08-35 653 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU), prior to June 17, 2009.
REPRESENTATION
Veteran represented by: Thomas Andrews, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from January 1953 to January 1955.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for PTSD and assigned a 50 percent evaluation for that disability, effective June 16, 2003, which is the date on which the Veteran filed his claim for service connection. The Veteran timely appealed that assigned evaluation.
During the pendency of the appeal, the Veteran was granted a 100 percent evaluation for his PTSD, effective from June 17, 2009. As this was not considered a complete grant of the benefits sought, the issue of entitlement to an increased rating for the period prior to June 17, 2009 remained before on appeal.
This case was initially before the Board in August 2010, at which time the claim for an increased evaluation during the relevant period was denied. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Secretary of the Department of Veterans Affairs (Secretary) and the Veteran jointly agreed to remand the case for further development and clarification by the Board. The Court ordered the August 2010 Board decision vacated and the case was remanded to the Board in accordance with the Joint Motion for Remand.
Subsequently, the case was returned to the Board in December 2011. The Board granted entitlement to a 70 percent rating for the PTSD for the period from December 27, 2007 to June 16, 2009, but denied entitlement to a rating in excess of 50 percent prior to December 27, 2007. These matters are final and will not be revisited in the current decision.
The Board's December 2011 decision also took jurisdiction of a claim for TDIU for the period prior to June 17, 2009 in accordance with the holding in Rice v. Shinseki, 23 Vet. App. 447 (2009). This issue was remanded for additional development. It is the sole issue remaining on appeal, and has now been returned to the Board for further consideration.
The Veteran testified before a Decision Review Officer in June 2006. A transcript is in the claims file.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. The Veteran's service connected disabilities for the relevant period include PTSD, evaluated as 50 percent disabling from June 16, 2003 to December 26, 2007, and 70 percent from December 27, 2007 to June 16, 2009; and hearing loss, evaluated as 10 percent disabling from October 20, 2006. The combined evaluations were 50 percent from June 16, 2003, 60 percent from October 2006, and 70 percent from December 2007.
2. Medical opinion states that the Veteran's alcohol abuse was not the result of his service connected PTSD, and that the Veteran's service connected disabilities did not preclude him for obtaining and maintaining gainful employment for the period from June 2003 to June 2009.
CONCLUSION OF LAW
The criteria for a total rating based on individual unemployability due to service connected disabilities prior to June 17, 2009 have not been met. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
In this case, the Veteran's claim for TDIU arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA.
The Board also finds that the duty to assist has been met. The Veteran's VA treatment records have been obtained. He has not identified any pertinent private medical records. As requested by the December 2011 remand, medical records were requested from the Social Security Administration (SSA), but a reply from SSA states that there were no medical records for the Veteran, indicating that he either did not apply for benefits or did not submit medical records in support of his claim. See 10/17/2012 VBMS, Third Party Correspondence, p. 1. A formal finding as to the unavailability of these records was made in February 2015.
The Veteran has been afforded VA examinations of his service connected disabilities. At the request of the December 2011 remand, the Veteran was afforded a VA examination in order to obtain opinions that address his employability, to include whether or not his alcohol abuse was a symptom of the service connected PTSD. Although the initial opinion was not complete in that it did not discuss a September 1999 VA examination as directed in the remand, the discussion and a corrected opinion was obtained in two subsequent addendums authored by the original examiner. Finally, the Veteran offered testimony before a hearing officer at the RO. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal.
TDIU
The Veteran contends that his service connected post-traumatic stress disorder (PTSD) and bilateral hearing loss combined to render him incapable of obtaining or maintaining gainful employment prior to June 17, 2009.
TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).
Prior to June 17, 2009, the Veteran was service-connected for PTSD and hearing loss. The PTSD was evaluated as 50 percent disabling from June 16, 2003 to December 26, 2007, and 70 percent from December 27, 2007 to June 16, 2009. Hearing loss has been evaluated as 10 percent disabling from October 20, 2006. The combined evaluations were 50 percent from June 16, 2003, 60 percent from October 2006, and 70 percent from December 2007. Thus, the threshold percentage requirements for TDIU were met from December 27, 2007, but were not met prior to that date. See 38 C.F.R. § 4.16(a).
However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the threshold percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). In such instances, the Veteran's claim is to be forwarded to the Director, Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b).
The remaining question concerns whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to June 17, 2009. See 38 C.F.R. § 4.16(a). If he was unemployable during the period beginning December 27, 2007, a total rating for individual unemployability may be granted by the Board. If the Veteran was unemployable during the period from June 16, 2003 to December 26, 2007, the Board will be unable to award a total rating in the first instance, and will forward the claim for extraschedular consideration.
When considering whether or not the criteria for TDIU have been met, the fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).
Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363.
The record includes a December 1987 letter from the Veteran in support of his claim for entitlement to a non-service connected pension. He said that he was unable to work due to his physical conditions, and cited prostate trouble, a recent heart attack, and chest pains. 1/7/1988 VBMS, Correspondence p. 1.
A January 1989 VA hospital summary shows that the Veteran had spent approximately a month in the hospital for treatment of his ethanol dependence. His history noted that he had been drinking since age 16. There had been two previous admissions for alcohol treatment in 1981 and 1986. His longest period of sobriety was from 1981 to 1983, during which time he reported no depression or anxiety. The Veteran said that he had lost two jobs due to his drinking. 9/13/2006 VBMS, VA 10-10 Forms (10-10EZ, 10-10SH, Etc.), p. 27.
An April 1999 VA treatment note states that the Veteran was disabled and had been on Social Security disability since 1992. Prior to that, his usual occupation had been a forklift operator and hardware garage door installer. 12/14/1999 VBMS, Capri p. 14.
A September 1999 VA psychiatric examination notes that the Veteran had a 52 year history of alcohol dependence. He had dropped out of the sixth grade. The Veteran had held several different types of jobs including forklift operator, garage door installer, and crate maker. He also received two years of technical training in brick masonry. The Veteran had been on disability since 1992 for a back injury but had not worked since 1980 because he reportedly has had trouble keeping a job due to his drinking. 12/14/1999 VBMS, Capri p. 4.
A December 2006 VA audiologic examination did not include any comment or opinion regarding the effects of the Veteran's service connected hearing loss on his employability. 1/3/2007 VBMS, VA Examination, p. 1.
The Veteran was afforded a VA PTSD examination in December 2007. A letter from the Veteran reportedly claimed he had experienced great difficulty maintaining a job. At the conclusion of the examination the diagnosis was PTSD. However, the examiner did not express an opinion as to the whether or not the Veteran's PTSD rendered him unemployable, nor was a discussion as to the effects on his employability included. 12/27/2007 VBMS, VA Examination, p. 1.
The Veteran underwent an additional VA PTSD examination in June 2009. When asked about his occupation, he stated that he had worked many jobs and often worked as a fork lift operator. He explained that he could not hold a job and was often accused of "going into a trance." He reported that he had been fired on numerous occasions. The Veteran was said to have abused alcohol in the past but to have quit five years ago. No opinion as to the Veteran's current employability was expressed. 6/17/2009 VBMS, VA Examination, p. 1.
As requested by the December 2011 Board remand, the Veteran underwent a VA PTSD examination in October 2012. The current diagnoses included PTSD, dysthymic disorder secondary to PTSD, and alcohol dependence in early partial remission secondary to PTSD. The examiner explained that alcohol dependence was judged secondary to PTSD and due to the Veteran's attempts to avoid traumatic events. The alcohol dependence was noted to have created additional problems for the Veteran. The review of the Veteran's history showed that his last job had been in 1989, but he was unable to do that anymore due to "feeling poorly." He had been collecting Social Security retirement from about 1982. A review of his medical history showed the initial PTSD examination stated that the Veteran's drinking became a problem following return from Korea, that he struggled with employment, his inability to keep a job continued to worsen, and the drinking interfered with his employment following service. Thus, it was as likely as not the alcohol use was secondary to PTSD.
The October 2012 VA examiner continued by stating that based on the current examination results it was more likely than not that the Veteran's service connected PTSD, in combination with its secondary mental disorders alone was sufficient to preclude substantially gainful employment. The examiner felt that he was not qualified to comment on the impact of the Veteran's hearing loss. The examiner added that the Veteran's drinking was deemed a symptom of his PTSD, and that alcohol dependence was as likely as not secondary to PTSD. Alcohol abuse was noted to take on a certain independence of its own, was likely to have caused problems independent of PTSD, and that in this case the problems caused by alcohol alone were equal to those caused by PTSD. Based on a review of the VA examinations from the period, the examiner stated that it is less likely as not that the Veteran was rendered unemployable for the period from June 2003 to June 2009. 10/31/2012 VBMS, VA Examination, p. 8.
After the RO noted that the October 2012 examiner had not specifically addressed the September 1999 examination as directed in the Board's remand, a brief addendum to the October 2012 VA examination was obtained from the original examiner in March 2015. The examiner stated that the data in the claims file supported the information gathered in the October 2012 examination, and there was no data in the claims file to counter that information. Thus no changes were warranted in the examination result. 3/4/2015 VBMS, VA Examination, p. 1.
However, the RO once again noted that the October 2012 examiner had still not specifically addressed the September 1999 VA examination as requested by the Board. A second addendum to the October 2012 VA examination was received from the original examiner in April 2015. The claims file was reviewed by the examiner, who on this occasion reviewed and discussed the September 1999 VA examination. The 52 year history of alcohol dependence dating from 1947 and age 16 cited on that examination was noted and discussed. The examiner also noted that alcohol problems were not identified on an October 2007 VA examination for aid and attendance or in the current diagnoses of a June 2009 VA PTSD examination. Based on the above, the examiner opined that it was less likely than not that the Veteran's alcohol use disorder was due to PTSD since it was reported to have begun before military service. Therefore, the October 2012 diagnosis of alcohol dependence secondary to PTSD should have read "less likely as not secondary to PTSD." Additionally, it was judged less likely than not that the Veteran's drinking rendered him unemployable for the period of June 2003 through June 2009. This was because alcohol use was not mentioned in two of the three evaluations during that period and only mentioned peripherally as a historical fact in the third. A review of progress noted during the period revealed that depression and PTSD were the primary diagnoses treated with alcohol use peripheral to the primary disorders. Therefore, it was unlikely that the Veteran was unemployable during the period of June 2003 to June 2009. 4/11/2015 VBMS, VA Examination, pp. 3-4.
After considering the record, the Board finds that entitlement to a TDIU for the period prior to June 17, 2009 is not warranted. The evidence does not show that the Veteran's service connected disabilities prevented him from obtaining and maintaining employment prior to that date.
The evidence shows that the Veteran has not been employed since at least 1987. At that time, he did not attribute his unemployment to psychiatric symptoms or hearing loss. Instead, he stated that he was unable to work due to various physical disabilities, none of which are service connected. In September 1999, he attributed his inability to work to a non-service connected back disability. Furthermore, there are no opinions dated prior to June 2009 that state the Veteran was unable to be employed as the result of his PTSD, hearing loss, or a combination of the two.
However, the record also includes the Veteran's statement to his health care providers and others that he has lost several jobs over the course of his life as a result of alcohol abuse. The Veteran and his representative argue that this alcohol abuse is the result of his service connected PTSD.
VA regulations state that no compensation shall be paid if a disability is the result of alcohol abuse. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in the line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. 38 C.F.R. § 3.301(a) (2016).
The exception to the above regulation is that service connection may still be recognized for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Therefore, if the Veteran's alcohol abuse is determined to be the result of his PTSD, then any impairment in employability attributable to alcohol abuse may be considered in determining whether or not his service connected disabilities preclude employment.
A confusing medical opinion addressing the relationship between the Veteran's PTSD and his alcohol abuse was obtained in October 2012. Initially it was found that it is more likely than not that the Veteran's service connected PTSD, in combination with his secondary mental disorders alone, was sufficient to preclude substantially gainful employment during the relevant period. At that time, the examiner deemed the Veteran's alcohol use to be the result of his PTSD, which means that the impairment due to alcohol use was a basis of the opinion that the Veteran was unemployable. However, in spite of providing a rationale seemingly in support of this opinion, the examiner then contradicted himself by stating in summary that it is less likely as not that the Veteran was rendered unemployable for the period from June 2003 to June 2009.
As a result of the examiner's conflicting opinion and rationale in the October 2012 examination, as well as the failure to discuss a September 1999 VA examination as requested in the Board's remand, it was felt necessary to obtain addendums, first in March 2015 and again in April 2015. The March 2015 addendum merely stated that there were no changes to the original opinion. However, in April 2015 the examiner noted that the September 1999 VA examination was finally available for review, that it provided a history of alcohol abuse that began well before the Veteran's entry into service and development of PTSD, and that therefore the alcohol abuse was not deemed to be the result of PTSD. It follows that the impairment to employability that results from alcohol abuse cannot be considered in determining entitlement to TDIU.
The Board acknowledges that the April 2015 addendum did not address the possibility that the Veteran's alcohol abuse was aggravated by the PTSD. However, in this instance that is harmless error. The basis for this determination is that the examiner stated that alcohol abuse was either not noted on the examinations conducted between 2003 and 2009, or was only noted peripherally, which led to the conclusion that the Veteran's drinking did not render him unemployable for the period between June 2003 through June 2009. Therefore, the matter of aggravation need not be addressed because even if aggravation occurred, it did not result in unemployability. The ultimate conclusion of the October 2012 examiner after completing his record review was that it was unlikely that the Veteran was unemployable during the period of June 2003 to June 2009. As the preponderance of the evidence weighs against a finding that the Veteran's service connected disabilities rendered him unable to obtain or maintain gainful employment during the period at issue, entitlement to TDIU is not supported.
In reaching this decision, the Board has considered whether or not the Veteran's claim for TDIU should be forwarded to the Director, Compensation Service for extraschedular consideration for the period prior to December 27, 2007. The Board finds that as the preponderance of the evidence is against a finding that the Veteran was unemployable due to his service connected disabilities during that period, extraschedular consideration is not required.
ORDER
Entitlement to a total rating based on individual unemployability due to service connected disabilities prior to June 17, 2009 is denied.
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ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs